Hon. Chigozie Eze & Ors. V. Governor Of Abia State & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal from the judgment of S.N. Imo, Chief Judge of Abia State delivered on 10/10/07 in Umuahia in the Umuahia Judicial Division of the High Court of Abia State.

On 12th September, 2006, the plaintiffs by originating summons sued the defendants/respondents asking for the determination of four (4) questions and sought six (6) reliefs. Leave of the trial court was later sought and granted to amend the originating ‘summons’ earlier filed by the plaintiffs. The 1st appellant and Mrs. Ijeoma Onyekwere Ujoumunna were the plaintiffs in the lower court. Only the 1st appellant filed a Notice of Appeal to this court. The 2nd to the 147th appellants brought a motion to this court to be joined as interested parties and the order was so granted. Hence the present number of appellants. The questions for determination in the Amended Originating Summons were as follows:

“(a) Whether by the provisions of section 7 of the 1999 Constitution of the Federal Republic of Nigeria and the provisions of the Abia State Local Government Law as amended, the 1st defendant has the legal competence to dissolve the Local Government Councils of Abia State and appoint Caretaker Committees to replace elected members of the said Local Government Council.

(b) Whether given the provisions of section 7 of the 1999 Constitution of the Federal Republic of Nigeria, sections 19(3) and 25 of the Abia State of Nigeria Local Government Law, No. 5 of 1999 and sections 4 and 5 of the Abia State Local Government (Third Amendment) Law, 2004 the tenure of both the Chairman and Vice Chairman as well as the Councilors is three (3) years or two (2) years.

(c) Whether the tenure of the Chairman and the Vice Chairman as well as councillors elected sometime in March 2004 and sworn in sometime in June 2004 will be regulated by the provisions of the Abia State Local Government (Third Amendment) law, 2004 which was passed sometime in September 2004′ and assented to sometime in October 2004 but was made retroactive and came into effect on the 11th March, 2004 or the provisions of sections 19(3) and 25 of the Abia State of Nigeria Local Government Law, No.5 of 1999 which was the law in force that regulated’ the conduct of the election of the plaintiffs as well as regulated their tenure.

(d) Whether given the provisions of section 7 of the 1999 Constitution of the Federal Republic of Nigeria, sections’ 19(3) and 25 of the Abia State of Nigeria Local Government Law, No. 5 of 1999 and sections 4 and 5 of the Abia State Local Government (Third Amendment) Law, 2004 the tenure of the plaintiffs as elected councilors will commence from the date of their swearing in or the date of their judgments or the date of the bye election respectively.”

The plaintiffs/appellants in the said Amended Originating Summons sought the following reliefs:

“1. A declaration that the 1st plaintiff was elected for the first time on the 14th December, 2005 and took the oath of office on the 14th day of January, 2006, while the 2nd plaintiff was returned on the 25thday of April, 2005 and took the oath of office on the 17th day of May, 2005.

2. A declaration that the tenure of the currently elected members of the Local Government Councils of Abia State is regulated by the provisions of section 25 of the Abia State of Nigeria Local Government Law, NO.5 of 1999 and not sections 4 and 5 of the Abia State Local Government (Third Amendment) Law, 2004.
3. A declaration that the tenure of the 1st plaintiff as an elected councilor of the Aba South Local Government Council started running from the date she took the oath of office which is the 18th day of January, 2006 while the tenure of the 2nd plaintiff as an elected councillor of the Aba South Local Government Council started running from the date he took the oath of office which is the 17th day of May, 2005.
4. A declaration that the 1st defendant or any of its agents lack the legal competence to dissolve the elected council of the Local Government Councils of Abia State and appoint Caretaker Committees or Transition Committees.
5. A declaration that the dissolution of the elected Chairman, Vice Chairman and Councillors of the Local government Councls of Abia State and the appointment of the 4th – 7th defendants and other persons as chairmen and members of Transition Committees of the Local Government Councils by the 1st defendant are illegal, ultra vires, null and void and of no effect whatsoever.
6. An order dissolving the appointment of the 4th – 7th defendants and other persons appointed as Chairman and members of Transition Committees of Caretaker Committees of the Local Government Councils of Abia State.
7. A declaration that as at the date of dissolution of the Local Government Councils in Abia State by the 1st defendant, the 1st and 2nd plaintiffs had a 17 (seventeen) and 11 months residue of their tenures respectively if the court holds that the plaintiffs are running a 2 (two) years tenure, 29 (twenty-nine) and 23 (twenty-three) months residue of their tenures respectively if the court holds that the plaintiffs are running a 3 (three) years tenure.
8. An order compelling the 151 defendant to reinstate the plaintiffs as councillors of Aba South Local Government Council to complete the residues of their respective tenures.”

Written Addresses were filed and exchanged by the parties before the lower court and on the 10th day of October, 2007, the learned Chief Judge of Abia State, S. N. Imo J., in a considered judgment granted the plaintiffs’ reliefs Nos. 1 and 3 but refused plaintiffs’ reliefs Nos. 2, 4, 5, 6 and 7 as the learned trial Judge held generally that the applicable law which governed the tenure of the plaintiffs as elected councillors are sections 4 and 5 of the Abia state Local Government (Third Amendment) Law, 2004 which fixed the tenure of elected Councillors at 2 years and not the provisions of section 25 of the Abia State of Nigeria Local Government Law No. 5 of 1999 which fixed the tenure of the plaintiffs at 3 years notwithstanding the fact that the Abia State Local Government (Third Amendment) Law, 2004 is a retrospective legislation.

Dissatisfied with this judgment, the plaintiff/appellant filed a Notice of Appeal containing four (4) grounds of appeal in this Court on Jed January, 2008.

The Appellants formulated four (4) issues for determination as follows:

1. Whether the law made by the 3rd respondent empowering the 1st respondent to truncate a democratically elected Local Government Council and the 1st respondent truncating a democratically elected Local Government Council pursuant to the said law is inconsistent with the provisions of section 1(2) and 7 of the Constitution of the Federal Republic of Nigeria and therefore void (Ground 1).
2. Whether the tenure of office of the Appellants will be regulated by the provisions of Section 19(3) and 25 of the Abia State of Nigeria Local Government Law No. 5 of 1999 under which they were elected and sworn into office or the provisions of Section 4 and 5 of the Abia State Local Government (Third Amendment) Law, 2004, which was made to have a retrospective effect on the tenure of office of the Appellants’ (Ground 2).
3. Whether a retrospective law made by the 3rd respondent will affect a right acquired by the Appellants under a law they were elected and sworn into office (Ground 3).
4. Whether the learned trial Judge was right in his interpretation of S.4(9) of the Constitution of the Federal Republic of Nigeria 1999 and in refusing to grant reliefs 2, 4, 5, 6, 7, and 8 sought by the Appellants. (Ground 4)”.

The respondents adopted the issues formulated by the Appellants. On Issue No.1, learned counsel for the Appellants re-echoed the supremacy of the Constitution of the Federal Republic of Nigeria 1999 as the organic law by which all levels of government are bound and have a duty to ensure its enforcement. Learned Counsel for the Appellants relied on the provision of Sections 1(1), 1(2) and 1(3)( of the 1999 Constitution and the cases of Adeleke & Ors. vs. O.S.H.A. & 18 Ors. (2006) 16 NWLR (Pt. 1006) page 608, Bayo vs. Njidda & 59 Ors. (2004) 8 NWLR (Pt.876) pages 544, 565, ANPP & 2 Ors. vs. B.S.I.E.C. & 5 Ors. (2006) NWLR (Pt.992) 585 at 545 and Aremo II vs. Adekanye & 2 Ors. (2004) 13 NWLR (Pt. 841) pages 572 to make the point that no person or group of person shall take control of the government or any part thereof except in accordance with the provisions of the Constitution. And that if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be null and void. Appellants’ counsel submitted that the Local Government Council of a State is the third tier of government and that by Section 7(1) of the Constitution, the system of Local Government by democratically elected Local Government Councils is guaranteed. Accordingly, said the Appellants’ Counsel, the power of the House of Assembly of a State to make laws for the peace, order and good government of the state or any part thereof under Section 4(7) of the said 1999 Constitution does not extend to truncate the tenure of a democratically elected Local Government Council in Section 7(1) of the Constitution. And that where as in the instant case, an amendment or a new law is made for the purposes of truncating democratically elected Local Government Council by abridging the tenure of office of serving Local Government Councils Chairmen, Vice Chairmen and Councillors and appointing a caretaker or transition committees in their stead is against the provision of 3.1(2) and 5.7(1) of the 1999 Constitution and therefore such laws are null and void to the extent of their inconsistencies.

On this, learned counsel for the appellants further relied on the case of A.G. of Plateau State & 23 Ors. vs. Hon. Goyol & 15 Ors, (2007) 16 NWLR (Pt.1059) P. 57 at 64. Learned counsel for the Appellants submitted further that the action of the 3rd respondent in the instant case amounted to aiding a civilian coup plotted and executed by the 1st respondent and such action is not only inconsistent with the provision of Section 1(2) of the Constitution but also against the oath of office of the 1st respondent.